BLACK v. BLADERGROEN, et al.

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BLACK

v.

BLADERGROEN, et al.

November 5, 1999

Record No. 990065

FRED S. BLACK

v.

MARK R. BLADERGROEN, M.D., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Randall G. Johnson, Judge

Present: All the Justices

OPINION BY CHIEF JUSTICE HARRY L. CARRICO

In this medical malpractice case, the sole
question for decision is whether the trial court erred in
excluding the testimony of a medical expert called by the
plaintiff. Finding the trial courts action erroneous, we
will reverse.

In a motion for judgment filed October 17,
1996, the plaintiff, Fred S. Black, sought to recover damages
from the defendants, Mark R. Bladergroen, M.D., Harold J.
Levinson, M.D.,[1]Thomas P. Christopher, M.D., and
Cardiac Surgical Associates, Ltd.[2]In the motion for judgment, the plaintiff alleged that
the individual defendants, Drs. Bladergroen, Levinson, and
Christopher, were duly licensed physicians who carried on a
practice of cardiac surgery in the employment of the corporate
defendant, Cardiac Surgical Associates, Ltd. The plaintiff
alleged further that the defendants negligence resulted in
the amputation of his right leg during a period of
hospitalization in 1994.

A jury trial resulted in a verdict in favor of
the defendants, upon which the trial court entered judgment. We
awarded the plaintiff this appeal.

Prior to the events in question, the plaintiff
had suffered from heart disease for some time and had endured two
heart attacks. In October 1994, he experienced pain and was
admitted to Henrico Doctors Hospital, where he came under the
care of the defendant physicians. Following cardiac bypass
surgery, he developed complications. His blood pressure dropped
to dangerously low levels, and he had problems with circulation
in his right leg. When the circulatory problems could not be
corrected, the leg was amputated. The plaintiff was diagnosed as
having suffered an anaphylactic reaction, which set off a chain
of events resulting in the loss of the leg.

During his case-in-chief, the plaintiff called
W. Dudley Johnson, M.D., a board-certified thoracic surgeon from
Milwaukee, Wisconsin, to testify as an expert on the standard of
care applicable to the defendants treatment of the
plaintiff. On voir dire examination, Dr. Johnson stated that he
attended the University of Illinois Medical School, and, after
finishing medical school and an internship, entered surgical
training, which consisted of four years of general surgery and
two years of heart surgery. He was an associate clinical
professor of surgery at the medical school in Milwaukee, belonged
to numerous medical associations and societies, and had served on
the Wisconsin State Medical Licensing Board, in which capacity he
examined the credentials of "[a]ll kinds of physicians . . .
from all over the country and around the world" who wanted
to come to Wisconsin to practice medicine.

Dr. Johnson testified further that he
"initially developed and perfected the modern [coronary]
bypass operation [which] is now done throughout the world"
and that he was "the first person to put in two, three,
four, five, six bypasses" and the first to "describe
secondary operations and . . . third and fourth operations for
coronary disease." He said that he personally had performed
between eight and nine thousand cardiac operations, that he had
operated in eight or nine foreign countries, and that patients
had come to him for surgery from approximately thirty-five
foreign countries and every state in the union. He also said that
"around 68" of his patients had come from Virginia and
that he had operated on "47 or 48" of them. He had
reviewed the records of his Virginia patients and had
communicated with their Virginia surgeons and cardiologists
regarding their care and treatment.

When asked on direct examination whether he was
"familiar with the standard of care that would have been
adhered to by a reasonably prudent board-certified cardiothoracic
surgeon practicing in Virginia in 1994," Dr. Johnson said,
"Yes." When asked to tell the jury "how [he had]
that familiarity," he stated: "Because all the surgeons
in the country take the same required exams. There is one
national board and one national certification for heart surgeons.
We dont have a certification for heart surgeons in
Wisconsin. I dont know of any state that has separate
certifications for any specialty."

On redirect examination, Dr. Johnson testified
he knew what the Virginia standard of care is because of his
"background and experience and several years on [the
Wisconsin] medical board [reviewing credentials of all] kind of
physicians . . . from all over the country" and because
Virginia cardiothoracic surgeons "have to go through the
same training and take the same exams as every other thoracic
surgeon . . . in the country." When asked whether
"there is any board certification of thoracic surgeons
applicable only to Virginia," he answered, "No . . .
[t]hey took the same ones I took. National exams."

In urging the trial court to exclude the
testimony of Dr. Johnson, the defendants offered no evidence of
their own. Instead, they relied solely on testimony he gave on
cross-examination. In response to defense counsels
questions, Dr. Johnson stated that he had never been licensed to
practice in Virginia, that he had never performed surgery in
Virginia, and that he had neither demonstrated nor witnessed
heart surgery performed in Virginia. He stated that while he had
discussed topics relating to cardiac surgery in general with
cardiac surgeons at national or regional meetings, he was
"not certain whether any of those cardiac surgeons actually
practice in Virginia." He admitted he could not name any
patient referred to him from Virginia with a history similar to
the plaintiffs. And, finally, in what the defendants term a
"concession," he said he thought he was familiar with
the Virginia standard of care for cardiac surgeons because he
believed "there is a national standard of care
applicable."

On appeal, citing Bly v. Rhoads, 216 Va.
645, 222 S.E.2d 783 (1976), the defendants say this Court
"has firmly rejected the availability in Virginia of a
recourse in a medical malpractice action to a national standard
of care" on the ground it is for the General Assembly to
decide whether there should be a national standard. Id. at
652-53, 222 S.E.2d at 789; seealsoPoliquin v.
Daniels, 254 Va. 51, 55, 486 S.E.2d 530, 533 (1997); Henning
v. Thomas, 235 Va. 181, 186, 366 S.E.2d 109, 112 (1988). In Bly,
we said a community standard of care applied in Virginia.
However, following Bly, the General Assembly enacted Code
? 8.01-581.20 and established a statewide standard. 1979 Va.
Acts ch. 325.

We have no intention of retreating from the
position we took in Bly that it is for the General
Assembly to say whether a national standard of care should apply
in Virginia and, hence, we have no inclination to adopt such a
standard ourselves. But nothing in Bly or any other
provision of law prohibits Virginia physicians from practicing
according to a national standard if one exists for a particular
specialty, even though neither the General Assembly nor this
Court has adopted such a standard.

Moreover, the law concerning medical experts
has changed since we decided Bly. In an amendment to Code
? 8.01-581.20, the General Assembly created a presumption that
favors the admissibility of the testimony of medical experts,
including out-of-state experts. 1989 Va. Acts ch. 146. Thus, the
question in this case is simply whether Dr. Johnsons
statements on cross-examination, including his
"concession" in which he related the Virginia standard
of care to the standard elsewhere, were sufficient to overcome
the presumption provided by Code ? 8.01-581.20.

The statutory language creating the presumption
reads as follows:

Any physician who is licensed to
practice in Virginia shall be presumed to know the
statewide standard of care in the specialty or field of

medicine in which he is qualified and
certified. This presumption shall also apply to any
physician who is licensed in some other state of

the United States and meets the
educational and examination requirements for licensure in
Virginia. [Emphasis added.]

The defendants raise a preliminary question.
They argue that the plaintiff failed to establish Dr.
Johnsons entitlement to the presumption provided by Code ?
8.01-581.20. However, Dr. Johnson was asked on his voir dire
examination whether he "possess[ed] the qualifications to
take the Virginia licensing to become licensed in Virginia,"
and he replied, "I believe I do, yes, sir."

At the conclusion of the voir dire hearing, the
trial court refused to allow Dr. Johnson to testify. The refusal,
however, was not on the ground the doctor was not entitled to the
presumption but because he lacked familiarity with the Virginia
standard of care.

The next day, the plaintiff offered into
evidence a sworn letter from the Commonwealths Department
of Health Professions, Board of Medicine, stating that Dr.
Johnsons credentials "meet the educational and
examination requirements for licensure in Virginia." The
trial court refused to admit the letter on the ground it came too
late, but, when the plaintiffs counsel asked the trial
judge whether he "accepted the [previous days]
testimony of Dr. Johnson that he met the educational and
examination requirements for licensure," the judge stated:
"I accept that testimony."

The defendants failed to make any objection in
the trial court to Dr. Johnsons testimony concerning his
qualifications for licensure, to the trial judges
acceptance of that testimony, or to the sufficiency of the
evidence offered to invoke the presumption provided by Code ?
8.01-581.20. Because the defendants raise the question whether
the plaintiff established Dr. Johnsons entitlement to the
presumption for the first time on appeal, we will not consider
the question. Rule 5:25.

This brings us to the question whether the
defendants rebutted the presumption provided by Code ?
8.01-581.20. The trial court held that the defendants had
overcome the presumption by showing on cross-examination of Dr.
Johnson that he "has never talked to anyone in Virginia, he
never practiced in Virginia, [and] he has never read about what
the standard of care is in Virginia." However, Dr. Johnson
stated that he had reviewed the records of his Virginia patients
and had communicated with their surgeons and cardiologists about
their treatment; the presumption provided by Code ? 8.01-581.20
is not predicated upon previous practice in Virginia; and the
evidence showed that there was no "such thing as a Virginia
textbook of cardiothoracic surgery" for Dr. Johnson to read.

Furthermore, "there is no rigid formula to
determine the knowledge or familiarity of a proffered expert
concerning the Virginia standard of care. Instead, that knowledge
may derive from study, experience, or both." Henning v.
Thomas, 235 Va. at 186, 366 S.E.2d at 112. Dr. Johnsons
extensive "background and experience" and his
familiarity with the manner of practice of "[a]ll kind of
physicians . . . from all over the country" offset any
effect the shortcomings perceived by the trial court may have had
upon the presumption. Hence, the matters listed by the trial
court were insufficient to overcome the presumption.

Neither do we consider that Dr. Johnsons
"concession," in which he related the standard of care
in Virginia to the standard elsewhere, had any effect upon the
presumption. Once the plaintiff established that Dr. Johnson met
the educational and examination requirements for licensure in
Virginia and, therefore, was entitled to the statutory
presumption that he knew the Virginia standard of care for
cardiothoracic surgeons, the burden shifted to the defendants to
show Dr. Johnson was wrong in his premise that the Virginia
standard and the standard elsewhere are the same. To carry this
burden, the defendants were required to show that the Virginia
standard differs from the standard elsewhere. SeeGriffett
v. Ryan, 247 Va. 465, 473, 443 S.E.2d 149, 154 (1994). Yet,
the defendants produced not a scintilla of evidence on the point,
and the presumption remained intact.

We do not overlook the rule that "the
question whether an expert is qualified rests largely within the
sound discretion of the trial court," Henning v. Thomas,
235 Va. at 186, 366 S.E.2d at 112, or the maxim that "[a]
decision to exclude a proffered expert opinion will be reversed
on appeal only when it appears clearly that the witness was
qualified." Noll v. Rahal, 219 Va. 795, 800, 250
S.E.2d 741, 744 (1979). But, in light of the defendants
failure to overcome the presumption provided by Code ? 8.01-581.
20, it appears clearly that Dr. Johnson was qualified.
Accordingly, it was error for the trial court to exclude his
testimony.

The defendants argue, however, that the
plaintiff "has utterly failed to demonstrate reversible
error." Their argument is two fold. First, they say that the
plaintiff "includes in his Brief of Appellant no discussion
of the testimony he hoped to elicit from Dr. Johnson" and,
thus, has given this Court "no basis to evaluate the
prejudice he now . . . avers he suffered when the trial court
excluded Dr. Johnson from testifying on the standard of care
applicable to the defendant doctors."

Second, the defendants say that the plaintiff
"obtained the standard of care testimony he sought from Dr.
Johnson from another expert witness, Dr. [Alfred Joseph] Martin,
[Jr.]," and the plaintiff fails to explain "how the
exclusion of Dr. Johnson prejudiced him . . . in light of his
success in eliciting the same category of evidence sufficient to
get his case to the jury."

We disagree with the defendants. In the
following passage from his Brief of Appellant, the plaintiff
refutes the first prong of the defendants argument by
providing this basis to evaluate the prejudice he avers he
suffered when the trial court excluded Dr. Johnsons
testimony:

The Courts ruling excluding the
testimony of Dr. Johnson clearly prejudiced the
plaintiff, Fred Black. He made an appropriate proffer
setting forth what Dr. Johnsons testimony against
each of the defendants would have been had he been
permitted to give it. . . . More importantly, Dr. Johnson
was not only qualified to testify as to the Virginia
standard of care, he is a world authority whose
accomplishments have been accorded international
recognition and is the father of the operative procedure
out of which this suit arose. His testimony would have
carried great weight with the jury. Counsel in opening
statements informed the jury of who Dr. Johnson was and
expressed great pride in the fact that he was going to
testify on the behalf of the plaintiff. When the court
refused to let him testify, Fred Black and his counsel .
. . lost credibility with the jury.

In the following passage from his reply brief,
the plaintiff answers the second prong of the defendants
argument by providing this explanation of how the exclusion of
Dr. Johnsons testimony prejudiced him despite his ability
to get his case to the jury with Dr. Martins testimony:

Dr. Johnson is a world authority on
cardiovascular surgery, which is the same specialty as
the defendants in this case. . . . Dr. Martin . . . is
from a different specialty, vascular surgery, and while
he was qualified as being from a related field, he could
certainly by no stretch of the imagination be claimed to
be a world authority. While much of what he testified to
was similar to the proffer that was made for Dr. Johnson,
no argument can genuinely be made that his testimony
carried as much weight as Dr. Johnsons would have.

For the error in excluding Dr. Johnsons
testimony, the judgment of the trial court will be reversed and
the case remanded for a new trial in which the doctors
testimony shall be allowed.

Reversed and remanded.

FOOTNOTES:

[1]Upon Dr. Levinsons death on
November 3, 1997, his executrix, Heidi S. Levinson, was
substituted as a party defendant in his place.

[2]A number of other health
care providers were also named as defendants, but they were
dismissed from the case on motions for summary judgment or
voluntary nonsuit and are not parties to this appeal.